Opinion
No. 34570-6-II.
September 25, 2007.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 05-1-00938-9, Stephen M. Warning, J., entered November 2, 2005.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Houghton, C.J., and Quinn-Brintnall, J.
In July 2005, Michael Creed was beaten and bound by two of his methamphetamine-dealing associates, Manuel Ortiz-Santiago and Chris Loughmiller. Creed escaped and was able to contact the police. Ortiz-Santiago, upon returning to the scene, saw the police and fled. The police caught up to his vehicle, and a search by the canine unit recovered both Ortiz-Santiago and the gun likely used in the kidnapping. Ortiz-Santiago was ultimately charged with first degree kidnapping with a firearm enhancement, first degree unlawful possession of a firearm, and unlawful possession of methamphetamine (a small amount was found in his pocket). Loughmiller testified on the State's behalf at trial, and a jury convicted Ortiz-Santiago on all counts. He now appeals, arguing that he received ineffective assistance of counsel and that the trial court erred by not administering an oath to his interpreter. Neither of these arguments has merit. Ortiz-Santiago raises additional arguments in a statement of additional grounds (SAG), but these are also unpersuasive. We affirm his convictions.
FACTS
On the night of July 31, 2005, Cowlitz County Deputy Sheriff Andrew Nunes responded to a call from Gary Elms, Sr.'s residence. While watching television that evening, Elms was disturbed by Creed knocking on his back door. Creed's arms were bound behind his back and his shirt was soaked through with sweat — Elms later testified that Creed was scared to death and "shaking like an old horse dying." 3 Report of Proceedings (RP) at 340. Elms asked his wife to call the police, and he cut Creed's hands loose.
Creed later testified that he sold methamphetamine for Ortiz-Santiago, who lived with his fianc É e in the house next to the Elms. As of July 31, Creed was in debt to Ortiz-Santiago for around $2,000. On that date, Creed was out selling drugs when he got a call telling him to meet Ortiz-Santiago at the house.
When he arrived at Ortiz-Santiago's house, Creed went to his room — he would sometimes stay at the house and stored some personal property there, including a black Hi-Point 9 mm Ortiz-Santiago had given him. He smoked methamphetamine while waiting for Ortiz-Santiago; he had also smoked methamphetamine several times earlier in the day.
Ortiz-Santiago eventually returned to the house with Loughmiller, a mutual acquaintance of both Ortiz-Santiago and Creed. He entered Creed's room, started asking Creed questions, and, according to Creed's testimony, got very irate. He accused Creed of selling his gun, the Hi-point 9 mm. Creed denied it and handed him the gun as proof, whereupon Ortiz-Santiago loaded it and pointed it at Creed.
Ortiz-Santiago accused Creed of disloyalty, and Creed was trying to talk his way out of it when Ortiz-Santiago pulled another gun (a chrome plated Ruger P89 9 mm) from his waistband and pointed it too at Creed. According to Creed, Ortiz-Santiago began discussing which gun he liked better and which one he would use to shoot Creed. Ortiz-Santiago then tossed the Hi-point gun onto a pile of clothes and hit Creed on the back of the head with the Ruger P89. Ortiz-Santiago then punched Creed and told him to lay down on his stomach with his hands behind his back.
By this time, Loughmiller had entered the room. He went through Creed's bag, took out a knife and some electrical cords, and tightly tied Creed's hands behind his back. Loughmiller later testified that he tied Creed up because Ortiz-Santiago asked him to.
Ortiz-Santiago left the room temporarily, and Creed begged Loughmiller not to tie him up, stating that he would like to see his son again before he died. Loughmiller responded by suggesting that he look at the picture of his son in his wallet. When Ortiz-Santiago returned, he told Loughmiller to "make sure he tied [Creed] up real good" and tied a pillowcase around Creed's hands. 3 RP at 252. They then bound Creed's feet with a pair of running pants and connected his feet to his hands, hog-tying him.
After Creed was tied up, Ortiz-Santiago kept the gun in his hand and told Creed he was going to kill him. Creed attempted to dial 911 on his cell phone, using his tongue to push the buttons, but Loughmiller realized what he was doing and tore the battery off the phone.
Loughmiller and Ortiz-Santiago left the room and smoked methamphetamine with another acquaintance who had arrived at the house while they were binding Creed. When that acquaintance left, Ortiz-Santiago returned to Creed's bedroom and informed him that, before he killed him, Creed was going to sign over all his belongings. Loughmiller gagged Creed using a speaker wire and a stocking hat inside a plastic bag, and he and Ortiz-Santiago turned off the light and shut Creed in the room.
After a few minutes, Creed observed through the crack at the bottom of the door that the living room light was off, so he kicked his feet free and escaped. He ran to the neighbor's property, where Gary Elms, Sr. cut his hands free and called the police.
While officers were speaking with Creed on the Elms' porch, a vehicle approached, stopped, backed up quickly into another driveway, and then left rapidly. Deputy Nunes and Officer Dennis of the Longview Police Department gave chase for a few blocks; the vehicle then stopped and the driver fled into an adjacent field.
Deputy Brett Harris and Nitro, the Cowlitz County canine unit, responded to a call from dispatch that someone had fled a vehicle. Deputy Harris placed Nitro in Ortiz-Santiago's car for a few minutes to acquire the scent; Nitro then followed the scent to Ortiz-Santiago, biting and restraining him until Deputy Harris arrived. Deputy Harris and Nitro then searched the entire area, and Nitro indicated on the front portion of a parked boat. Officers discovered a gun (a nickel-plated Ruger semi-automatic handgun) underneath the boat.
Deputy Nunes took Ortiz-Santiago into custody, and he was searched upon his arrival at the jail. Officers found a crystal substance, later identified as methamphetamine, and three 9 mm cartridges in his pocket. Additionally, Deputy Nunes observed a magazine of 9 mm hollow-point bullets in the front seat of the vehicle — the same type of bullets found in Ortiz-Santiago's Pockts.
The State charged Ortiz-Santiago with first degree kidnapping, unlawful possession of methamphetamine, and first degree unlawful possession of a firearm.
At trial, Loughmiller testified on the State's behalf. He stated that he and Ortiz-Santiago had been drinking beer and smoking methamphetamine during the day of July 31, 2005, and that Ortiz-Santiago told him that Creed had "messed up." 3 RP at 372. He also stated that Ortiz-Santiago had asked him if he was "down . . .[i]f things were to happen if [Loughmiller] was going to have his back." 3 RP at 374. They did not discuss specific plans of what to do to Creed.
According to Loughmiller, he called Creed asking him to meet at Ortiz-Santiago's house because Ortiz-Santiago asked him to. Loughmiller also claimed he was in the room the entire time but "tuned . . . out for [a] little bit" while Creed and Ortiz-Santiago were talking. 3 RP at 376.
Loughmiller contradicted Creed's testimony, claiming that Ortiz-Santiago merely held the gun and looked at it (rather than pointing it at Creed). Loughmiller saw Creed fall backwards, but he stated that he was not sure what caused it — he never saw Ortiz-Santiago hit Creed. Loughmiller also stated that the 9 mm Ruger was Creed's gun, not Ortiz-Santiago's.
During direct examination, the prosecutor asked Loughmiller if he was truthful with the police:
[State]: And when you talked to Deputy Nunes, did you tell him the truth about your role and
[Ortiz-Santiago's] role involving Mr. Creed?
[Loughmiller]: No, I did not.
[State]: No, you didn't? Okay, did you lie to this officer?
[Loughmiller]: Yes, I did.
[State]: Why did you lie to him?
[Loughmiller]: To try and get myself out of trouble — telling him what I thought he wanted to hear.
[State]: Okay. So you were trying to get yourself out of trouble?
[Loughmiller]: Yes.
[State]: Okay. And your testimony here today, is that similar or different to what you told the deputy sheriff?
[Loughmiller]: It's different.
[State]: What you told the jury here today, is that the truth?
[Loughmiller]: Yes, it is.
3 BP at 396-97. Loughmiller then admitted to accepting a plea offer in exchange for his testimony, whereby his charges were reduced from first degree kidnapping with a firearm enhancement to second degree kidnapping, giving him a sentencing range of 6-12 months.
During Loughmiller's cross-examination, defense counsel reiterated that his sentence was dramatically reduced by his plea agreement — from 111-128 months down to 6-12 months — and stressed his intake of alcohol and methamphetamine during the day in question. She also pointed out Loughmiller's inconsistent statements, both to police when he was initially arrested and to her when she interviewed him regarding whether he had contact with Ortiz-Santiago since the incident. Finally, she stressed that Loughmiller had not yet been sentenced and that he believed his sentence would depend on his testimony.
Ortiz-Santiago testified in his own defense. He claimed that he was not friendly with Creed; he merely allowed Creed to store some things at his house. He stated that he never gave methamphetamine to anyone, and never gave anything to Creed personally. He testified that he went to his friend Corey's house that day; helped him work on a car; and stayed there all evening, leaving at 10:00 or 10:30 pm. According to Ortiz-Santiago, he did not go to the house until about 11:30 pm after his fiancée called him and told him that the house was open and no one was there. He also testified that he turned the car around when he saw police because he had a little methamphetamine in his pocket.
Ortiz-Santiago claimed that he did not have a gun with him at all that evening, that he never carried a gun, and that he could not remember how the bullets got in his pocket. He also testified that he did not see Creed or Loughmiller on July 31. When asked whether he had threatened Creed with a gun, he replied, "It is impossible because I never saw him that evening." 4 RP at 505. He stated that he did not know how Creed came to be tied up inside his house.
In closing, Ortiz-Santiago's counsel argued that the only testimony regarding the kidnapping came from Creed and Loughmiller, both of whom had ulterior motives. She argued that Ortiz-Santiago's version of the story simply made more sense than Creed's and Loughmiller's.
The jury convicted Ortiz-Santiago on all counts, and it returned a special verdict finding that Ortiz-Santiago was armed with a firearm at the time of the kidnapping. The court sentenced Ortiz-Santiago to 209 months' imprisonment (the low end of the standard range, using an offender score of 9 and including the firearm enhancement). Ortiz-Santiago now appeals.
ANALYSIS
I. Ineffective Assistance of Counsel
Ortiz-Santiago claims that he was denied effective assistance of counsel when his attorney failed to properly impeach Loughmiller and when she failed to request a jury instruction on voluntary intoxication. To demonstrate ineffective assistance of counsel, a defendant must show: (1) his defense counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness considering all the circumstances; and (2) this deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have differed. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (citing State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Competency of counsel is determined based on the entire record. McFarland, 127 Wn.2d at 335 (citing State v. White, 81 Wn.2d 223, 225, 500 P.2d 1242 (1972)).
We engage a strong presumption that defense counsel's conduct is not deficient. McFarland, 127 Wn.2d at 335. There is a sufficient basis to rebut such a presumption where there is no conceivable legitimate tactic explaining counsel's performance. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004) (citing State v. Aho, 137 Wn.2d 736, 745-46, 975 P.2d 512 (1999)).
A. Impeaching the Witness
Ortiz-Santiago contends that his counsel was ineffective because she failed to fully impeach Loughmiller. The State responds that Ortiz-Santiago was not denied effective assistance of counsel because counsel's conduct when questioning Loughmiller did not fall below an objective standard of reasonableness, and Ortiz-Santiago has not established what prejudice, if any, resulted. The State, citing State v. Oswalt, 62 Wn.2d 118, 120, 381 P.2d 617 (1963), also asserts that whether Loughmiller did or did not meet with Ortiz-Santiago between the incident and trial is a collateral matter and therefore is not information that could impeach Loughmiller. We agree.
The State also argues that Ortiz-Santiago did not develop this argument sufficiently because he failed to offer any authority for his claims that his counsel's questioning of Loughmiller either fell below an objective standard of reasonableness or prejudiced him. However, his arguments are fact specific, and no authority is required in order to evaluate them.
Ortiz-Santiago's questioning of Loughmiller did not fall below an objective standard of reasonableness. The prosecutor had already pointed out Loughmiller's inconsistent statements to the police. Defense counsel did elicit testimony that Loughmiller had given inconsistent statements regarding whether he spoke with Ortiz-Santiago after the incident. She also stressed both of these examples of inconsistencies in her closing statement. Counsel's decision not to call another witness to corroborate Loughmiller's prior inconsistent statement (as Ortiz-Santiago now suggests) was reasonable.
Additionally, Ortiz-Santiago has failed to establish how failure to further impeach Loughmiller may have prejudiced him. Even if Loughmiller was thoroughly impeached as a witness, the weight of the record — Ortiz-Santiago's attempt to flee the scene, the bullets in his pocket, and Creed's testimony — was extremely damaging. There is nothing in the record to indicate a reasonable probability that further impeachment of Loughmiller would have changed the trial's result.
B. Jury Instruction
Ortiz-Santiago also argues that his counsel's failure to request a voluntary intoxication instruction demonstrated ineffective assistance of counsel. The State responds that counsel's decision not to seek a voluntary intoxication instruction was likely trial strategy — Ortiz-Santiago testified that he never saw Creed on the night in question and threatened him, and a voluntary intoxication instruction would have been inconsistent with this denial. The State's argument is persuasive.
If trial counsel's conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim that the defendant received ineffective assistance of counsel. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). Here, Ortiz-Santiago testified on his own behalf, and his defense was complete denial. He claimed that he was not even at the house on the night in question and only returned to the house after police were already on the scene. In closing, his attorney continued this strategy, arguing that Ortiz-Santiago's version of events was more credible than Creed's and Loughmiller's.
Where, as here, denial is the focus of the defense, a voluntary intoxication instruction is not necessary. See State v. Kruger, 116 Wn. App. 685, 691, 67 P.3d 1147 (2003) (voluntary intoxication instruction should be given where the focus of the defense is intent). Jury instructions should sufficiently enable the defendant to have their case theory submitted to the jurors. See Kruger, 116 Wn. App. at 693 (quoting State v. Finley, 97 Wn. App. 129, 134, 982 P.2d 681 (1999) ("a defendant is entitled to have his or her theory of the case submitted to the jury under appropriate instructions when the theory is supported by substantial evidence"). Ortiz-Santiago's theory of the case — denial — was submitted to the jury. The lack of a voluntary intoxication instruction was neither unreasonable nor prejudicial.
Ortiz-Santiago was not denied his right to effective assistance of counsel; his counsel's conduct was neither deficient nor prejudicial.
II. Administration of Oath to Interpreter
Ortiz-Santiago argues that the trial court erred by failing to administer an oath to the interpreter assisting him. Citing State v. Serrano, 95 Wn. App. 700, 977 P.2d 47 (1999), the State responds that Ortiz-Santiago did not object to the interpreter's presence at trial and that he may not raise the issue of her qualifications for the first time on appeal. The State also contends that Ortiz-Santiago has failed to show any prejudice and therefore has not established that this alleged error was of constitutional magnitude.
RCW 2.43.050 states:
Before beginning to interpret, every interpreter appointed under this chapter shall take an oath affirming that the interpreter will make a true interpretation to the person being examined of all the proceedings in a language which the person understands, and that the interpreter will repeat the statements of the person being examined to the court or agency conducting the proceedings, in the English language, to the best of the interpreter's skill and judgment.
The Serrano court held that because nothing in the record supported the defendant's claims that the interpreter was incompetent or, indeed, necessary, the defendant had no constitutional claim and therefore could not raise the issue of the interpreter's certification for the first time on appeal. Serrano, 95 Wn. App. at 704. Similarly, here there is nothing in the record to indicate that the interpreter was incompetent; the record additionally indicates that Ortiz-Santiago had no need for an interpreter. We agree with the State that he may not raise the issue for the first time on appeal.
Additionally, Division One has held that a defendant did not properly preserve the error for appeal when he did not to object to a court's failure to administer an oath to a witness. State v. Avila, 78 Wn. App. 731, 738, 899 P.2d 11 (1995). Under this rule, any error by the court in failing to administer an oath to the interpreter was not preserved for appeal, and we decline to address it.
III. Statement of Additional Grounds — Ineffective Assistance of Counsel
In his SAG, Ortiz-Santiago argues that his Fifth, Sixth, and Fourteenth Amendment rights were violated by ineffective assistance of counsel. His argument hinges on the lack of communication between him and his attorney; he argues that this lack of communication led to "no [s]uppression of evidence . . . no open statements by defense; no objections to prosecutions leading questions about firearm possession and the firearm clip and bullets and the weapon. . . ." SAG at 4. He also argues that the witnesses should have been "competently cross-examined." SAG at 4.
There is only one example in the record of Ortiz-Santiago having any trouble communicating. At one point in trial, Ortiz-Santiago's attorney asked for a moment with her client due to communication problems with the interpreter. The court complied, and she ultimately stated that they would need a break later because they were "just not communicating on this issue." 3 RP at 288. The issue in question was whether Creed communicated with Ortiz-Santiago or received any of his belongings from Ortiz-Santiago after the incident. This issue — the only example in the record of any miscommunication — is not at all relevant to the arguments Ortiz-Santiago raises in his SAG.
It is apparent from the record that Ortiz-Santiago was able to communicate with his attorney during his testimony; he was also clearly able to communicate his desire to testify. Additionally, his fianc É e testified that she spoke no Spanish, and Ortiz-Santiago communicated with her entirely in English. Ortiz-Santiago clarified, testifying that he speaks English regularly, but asked for the interpreter to help with more complicated words, "like — things here in the court." 4 RP at 495. His interpreter seemed very thorough, asking several witnesses to repeat their statements or speak louder, in an effort to correctly interpret the proceedings. Indeed, at one point, Ortiz-Santiago corrected her.
Moreover, Ortiz-Santiago does not specify which evidence should have been suppressed, and the record does not contain any questionably admissible evidence. The police discovered the bullets and methamphetamine in his pockets during a search incident to his lawful arrest and the magazine of bullets in the vehicle was in plain view. Every exhibit entered into evidence was thoroughly examined by defense counsel. Additionally, Ortiz-Santiago's argument that there were no "open statements" by the defense is not substantiated in the record; as stated several times above, he testified in his own defense. SAG at 4.
The record also does not support Ortiz-Santiago's argument that his attorney should have objected more strenuously to the prosecutor's questions regarding the weapon and the other evidence. In fact, his attorney objected several times to the prosecutor's questions and was usually overruled.
Finally, as stated above, Ortiz-Santiago's counsel did competently cross-examine witnesses. She impeached Loughmiller and Creed's testimony, introducing both Loughmiller's prior inconsistent statements and their extensive drug use during the day, questioning their ability to remember anything correctly in their drug-influenced state, and emphasizing Creed's financial debt to Ortiz-Santiago.
Ortiz-Santiago has again failed to establish either that his counsel's conduct fell below an objectively reasonable standard or that her conduct prejudiced him in any way. This argument fails.
IV. Statement of Additional Grounds — Insufficient Evidence
Also in his SAG, Ortiz-Santiago argues that insufficient evidence existed either to convict him of unlawful possession of a firearm or to support the firearm enhancement. He contends that the witnesses who claimed he possessed a firearm were not credible, and therefore the record does not support a finding that he had a weapon in his possession or that he used this weapon to commit the crime. The State disagrees and responds that sufficient evidence supported each conviction. The State is correct.
The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). When the sufficiency of the evidence is challenged in a criminal case, we draw all reasonable inferences from the evidence in the State's favor and interpret it most strongly against the defendant. Salinas, 119 Wn.2d at 201. Credibility determinations are for the trier of fact and are not subject to review on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
A person is guilty of unlawful possession of a firearm if a person owns, has in his possession, or has in his control any firearm after having previously been convicted of a serious offense. RCW 9.41.040(1)(a). Here, the parties stipulated that Ortiz-Santiago had been previously convicted of a serious offense, and he had not yet had his right to bear arms reinstated. Therefore, sufficient evidence must support the jury's finding that Ortiz-Santiago owned, possessed, or had control of a firearm.
The jury clearly found Creed's and Loughmiller's testimony credible. Creed's testimony alone, especially when viewed in the light most favorable to the State, would convince any rational trier of fact beyond a reasonable doubt that that was the case. In addition, a dog tracking Ortiz-Santiago's scent recovered a gun in close vicinity to where Ortiz-Santiago was found, and he had bullets in his pocket matching the gun's caliber. The evidence was therefore sufficient to support Ortiz-Santiago's conviction on this count.
Creed's testimony also provided the nexus between the firearm and the kidnapping. His testimony was sufficient to convince a reasonable trier of fact beyond a reasonable doubt that Ortiz-Santiago used a firearm in the kidnapping. Therefore, the evidence was sufficient to support the firearm enhancement.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur:
HOUGHTON, C.J.
QUINN-BRINTNALL, J.